Canada: Ontario Government Proposes Changes To Lobbying Rules

On July 25, 2012, the Ontario government announced its proposal to amend and update the Lobbyists Registration Act, 1998 (Ontario) (the Act),which governs the lobbying of provincial public office holders in Ontario.

The existing Act has undergone few amendments since it first came into force in 1998. It outlines certain requirements for both in-house and consultant lobbyists who communicate with public office holders in the provincial government. Lobbyists are required to register with the Integrity Commissioner's lobbyist registry and disclose their lobbying activities. In particular, the Act requires lobbyists to disclose any communications with public office holders and the subject matter of their communications. In addition, lobbyists are required to disclose the organizations for which they are working and whether or not those organizations receive public funding.

The exact details of the proposal will not be available until the changes are introduced in the Legislature. For now, the government has simply announced its intention to introduce such changes. The proposals are intended to increase transparency and accountability surrounding lobbyists' activities, prevent potential conflicts of interest, and increase disclosure with respect to government spending. If passed into law, it is expected that the following amendments will be made to the Act:

  • The Integrity Commissioner (who is responsible for the administration of the Act and serves concurrently as the Lobbyist Registrar of Ontario) will be given greater enforcement and investigative powers to prohibit certain individuals from lobbying, compel individuals to testify and obtain key documents from lobbyists;

  • The Integrity Commissioner will be given the power to establish a Code of Conduct for lobbyists;

  • Lobbyists will be prevented from accepting additional contingency fees for preferred outcomes;

  • Lobbyists will be forced to identify the specific Member of Provincial Parliament and Ministers' offices they lobby;

  • A "contracting prohibition" will be put in place, that is, lobbyists will be restricted from lobbying on a subject matter if they have a contract to give paid advice to a public office holder on the same subject matter;

  • For-profit and not-for-profit organizations will be combined under the same category of "in-house lobbyists"; and

  • The maximum fine for non-compliance with the rules will be increased from C$25,000 to C$100,000. In addition, lobbyists who do not adhere to the rules may be banned from working in their capacity as lobbyists for up to two years.

Many of these proposed amendments mirror recommendations that the Integrity Commissioner made in her May 2012 review of the existing legislation. The Integrity Commissioner's recommendations are also consistent with federal recommendations released earlier in May 2012 by the House of Commons Standing Committee on Access to Information, Privacy and Ethics in a report entitled Statutory Review of the Lobbying Act: Its First Five Years. (No federal legislation has yet been announced to introduce these recommendations).

The changes represent an effort to modernize Ontario's lobbying legislation by introducing measures and practices that are already in effect in other Canadian jurisdictions. Quebec, and Newfoundland and Labrador commissioners presently all have the power to ban individuals from lobbying if they do not adhere to the respective lobbying rules. In British Columbia and Alberta, lobbyists are already subject to a contracting prohibition that restricts them from providing paid advice to a ministry and lobbying on the same subject matter.

The proposed change that will likely have the greatest effect on day-to-day lobbying activity is the requirement for lobbyists (including in-house lobbyists) to identify the specific Member of Provincial Parliament and Ministers' offices they lobby. It is unclear whether this requirement will follow the federal "designated public office holder" requirement, which provides that all meetings must be documented and disclosed to the Registrar in a communications report filed by the 15th day of the following month.

The proposal for a "code of conduct" for lobbyists could also have far-reaching implications, particularly if the Code of Conduct is drafted and interpreted as broadly as the federal Code of Conduct has been with respect to conflicts of interest.

Together with the new rules, the Ontario government will also propose changes to the Cabinet Ministers' and Opposition Leaders' Expenses Review and Accountability Act, 2002 (Ontario) to require opposition leaders and their staff to make public their expenses. This reporting obligation is only currently required for cabinet ministers, parliamentary assistants and their staff, and may affect the palatability of these proposals in a minority Legislature.

The proposed amendments will be tabled this fall by the Ministry of Government Services, when the Ontario Legislature resumes its regular fall schedule. Following second reading of the legislation, the proposed changes will be sent to a Standing Committee of the Legislature for legislative review and stakeholder input. Because of the minority Legislature, support from opposition parties could affect timing and the likelihood of these changes passing into law.

In addition to changes at the provincial level, there are recent developments in lobbying laws at the municipal level. As of September 1, 2012, the City of Ottawa's new Lobbyist Registry By-Law came into effect. Under the city's new regime, where lobbying has taken place, individuals are required to register their lobbying activity within 15 days. This must include where and when lobbying took place, the client, the subject matter, the person(s) lobbied, and the method of communication used. There is no minimum hour threshold for the lobbying requirement to be triggered. The by-law is only applicable to individuals representing businesses or financial interests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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